CELINE JOSEPH STEWART v STATE OF MAURITIUS

2011 PRV 42

[2012] UKPC 32
Privy Council Appeal No 0042 of 2011

JUDGMENT

Joseph Stewart Celine (Appellant) v The State of Mauritius

(Respondent)

From the Supreme Court of Mauritius

before

Lord Hope
Lord Kerr
Lord Dyson
Lord Reed
Sir Anthony Hooper

JUDGMENT DELIVERED BY

LORD KERR

ON

16 August 2012

Heard on 18 July 2012

Appellant Respondent
Yanilla Moonshiram Edward Risso-Gill
(Instructed by S B Solicitors) Sulakshna Beekarry
(Instructed by Royd Solicitors)

LORD KERR:

1. Mr Joseph Celine applies for an extension of time in order to prosecute an appeal against the
decision of the Supreme Court of Mauritius which upheld his conviction for forgery and making
use of forged documents. The Intermediate Court of Mauritius had found him guilty on four counts
on 2 March 2006. The offences were alleged to have been committed in October 2005. Mr Celine
was sentenced to three years' penal servitude. On 12 February 2008 the Supreme Court
dismissed his appeal against conviction but reduced his sentence to eighteen months'
imprisonment.
2. On 20 February 2008, Mr Celine applied to the Supreme Court for leave to appeal to the Judicial
Committee of the Privy Council. Leave to appeal was finally granted on 10 August 2009. Mr
Celine was given leave to appeal on a number of grounds. The deadline for filing his Notice of
Appeal was 4 October 2009. As Mr Celine also sought permission to appeal on grounds other
than those for which he had been granted leave, he was required to lodge a Notice of Appeal. In
this connection rule 11(2) of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009
("the 2009 Rules") provides:

"An application for permission to appeal must be filed within 56 days from the
date of the order or decision of the court below or the date of the court below
refusing permission to appeal (if later)."

3. Mr Celine was also required by rule 18(2) of the 2009 rules to lodge a Notice of Appeal within 56
days in respect of those grounds on which he had been granted leave. His Notice of Appeal was
not filed in time. It was lodged on 29 June 2011. The Board directed that the application for
extension of time should be listed for an oral hearing before five members of the Judicial
Committee, with the appeal itself to follow if the Board was satisfied that it was in the interests of
justice that it should proceed to a full hearing.

4. Having heard submissions from counsel on Mr Celine's behalf and on behalf of the State in
relation to his application to have time extended, the Board announced its decision that it would
extend time in relation to one ground only, namely, "whether, in view of the delay which has
elapsed since the alleged commission of the offence, the Supreme Court was right to maintain a
custodial sentence against the appellant in breach of section 10 of the Constitution". This was
one of the grounds on which leave had been granted by the Supreme Court and the Board heard
further submissions from counsel and reserved its decision. This judgment gives the Board's
decision on the appeal.

5. Section 10(1) of the Constitution (1968) provides:

"(1) Where any person is charged with a criminal offence, then, unless the
charge is withdrawn, the case shall be afforded a fair hearing within a reasonable
time by an independent and impartial court established by law."

6. The respondent accepts that there has been a breach of the reasonable time requirement in this
case. It is submitted, however, that the State was by no means responsible for all of the very
considerable delay in the case and that the appellant must bear some blame in relation to a
number of periods. Moreover, it is said, the appellant was complaisant about the State's inaction
and did not oppose the frequent applications for adjournments.

7. The appellant does not accept that he should be penalised for what might be regarded as
passivity on his part in relation to the State's recurrent applications for adjournments. He claims
that such applications are almost always granted by the courts of Mauritius and that any
opposition to adjournments would have been pointless.

8. The Board is not in a position to make any judgment on these claims. It observes, however, that
an appellant who seeks to challenge the propriety of a sentence passed on the ground that there
has been delay in the prosecution of offences must expect to have his attitude to the
postponement of proceedings closely examined. Even if success in opposing applications for
adjournment is unlikely, one would expect to see evidence of representations on a defendant's
behalf protesting about delay before accepting that he was truly anxious for the case to be
completed.
9. The Board received extensive submissions from Miss Moonshiram on behalf of Mr Celine and
from Mr Risso-Gill on behalf of the State about the various periods of delay and the reasons for
them. It would not be profitable to rehearse those at great length. A chronology of events has
been helpfully prepared by the respondent and it is annexed to this judgment. It is sufficient to say
that between the time that the appellant was first cautioned about the offences (on 29 November
1996) and the final disposal of his appeal, there were substantial periods of delay which were
either unexplained or inexcusable. The respondent accepts that, for the purposes of calculating
the period of delay, time began to run from the date on which the appellant was cautioned.

10. In fairness to the appellant it should be pointed out that in September 2000 an application was
made on his behalf to stay the case on the ground that too great a period had elapsed from the
date of his alleged offending and trial. As Mr Risso-Gill pointed out, that application was
withdrawn on 7 December 2000, it having been conceded that the inquiry into the case had been
completed within a reasonable time and that the Director of Public Prosecutions had advised
timeously. But as counsel was quick to accept, whether that concession was correctly made or
not, in light of the subsequent delay in the case, the period up to December 2000 must come
again into the reckoning because it is the effect of the overall period of delay that must be
considered in deciding whether this should have any impact on the sentence passed.

11. The respondent accepts responsibility for the following periods of post-2000 delay in proceedings
before the Intermediate Court: from 21 January 2003 to 20 February 2004 due to the loss of
prosecution papers (14 months); the adjournment from 20 January 2004 to 6 April 2004 (2
months); and a proportion of the periods of delay occasioned by subsequent adjournments before
the Intermediate Court, although it claims that some of these would have been necessary in any
event. The case was adjourned on successive occasions for the twelve months between July
2004 and July 2005.

12. During the appellate proceedings below the respondent accepts that it was responsible for a 12
month delay due to the late filing of the record and an additional 5 month delay from 26 June
2008 to 24 November 2008 caused again by the absence of the relevant record before the
Supreme Court on the application for leave to appeal to the Judicial Committee.

13. It is suggested that the prosecution was therefore responsible for delay of more than three years
in the overall period of 15 years. The Board does not accept that the State's responsibility for
delay can be confined to so short a period. The appellant was cautioned and charged on 29
November 1996 but an information was not filed until 16 June 1999 and pleas were not taken nor
was the trial date set until 26 July 1999. While some of this period would undoubtedly be required
for the assembly of evidence, it does seem an inordinately long time to pass without any
proceeding before a court.

14. When finally the trial before the Intermediate Court was completed on 2 August 2005, judgment
was due to be delivered on 15 September 2005. It was not delivered on that date because,
apparently, the defence had failed to submit authorities on which it intended to rely. Judgment
was fixed for 31 October 2005 but was again adjourned because the court then decided that it
needed to hear submissions from the prosecution on matters of law. This legal argument did not
take place until 8 February 2006. While some of the delay during this time was due to defence
counsel being abroad, other reasons for postponements (such as the magistrate being on leave
on a day which had been fixed for the resumed hearing) must be laid firmly at the door of the
respondent. Moreover, much delay was occasioned in arranging the hearing of the application for
leave to appeal to the Judicial Committee before the Supreme Court and the respondent must
accept responsibility for that.

15. The Board has therefore concluded that the State has been responsible for delay well beyond the
three years that counsel for the respondent suggested.
16. It is accepted that the Supreme Court did not take account of delay in reducing the sentence that
had been imposed by the Intermediate Court. The section of the judgment dealing with sentence
merely states:

"Considering the sums involved, we consider that the sentence passed was in
the circumstances of the case manifestly harsh and excessive and that the
appropriate sentence would have been one of 18 months' imprisonment."

17. In light of the fact that delay played no part in the Supreme Court's decision on sentence, Mr
Risso-Gill accepts that some adjustment to the period of eighteen months is warranted. Miss
Moonshiram argues that the sentence should be quashed.

18. In Darmalingum v The State [2000] 1 WLR 2303, at 2310 D Lord Steyn, delivering the judgment
of the Board, said that the normal remedy for failure of the reasonable time guarantee would be to
quash the conviction. At 2310 E, however, he went on to say:

"Their Lordships do not wish to be overly prescriptive on this point. They do not
suggest that there may not be circumstances in which it might arguably be
appropriate to affirm the conviction but substitute a non-custodial sentence, e.g.
in a case where there had been a plea of guilty or where the inexcusable delay
affected convictions on some counts but not others."

19. This issue has been considered more recently by the Board in Boolell v The State [2006] UKPC
46 where reference was made to the decision of the House of Lords in Attorney General's
Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72 which had held that although through
the lapse of time in itself there was a breach of article 6(1) of the European Convention on
Human Rights and Fundamental Freedoms, the appropriate remedy would not necessarily be a
stay of proceedings but "would depend on all the circumstances of the case". In light of that
decision, delivering the judgment of the Board in Boolell, Lord Carswell said at para 32:

"Their Lordships accordingly consider that the following propositions should be

regarded as correct in the law of Mauritius:

(i) If a criminal case is not heard and completed within a reasonable time, that will
of itself constitute a breach of section 10(1) of the Constitution, whether or not
the defendant has been prejudiced by the delay.

(ii) An appropriate remedy should be afforded for such breach, but the hearing
should not be stayed or a conviction quashed on account of delay alone, unless
(a) the hearing was unfair or (b) it was unfair to try the defendant at all."

20. Miss Moonshiram submitted that the appellant's trial was rendered unfair because the delay
which had occurred made it difficult for various prosecution witnesses to remember essential
details that were necessary to sustain the charge and a number of witnesses had to inspect
documents in order to refresh their memory. But it is not suggested that having their memory
refreshed in this way was inadmissible or unfair, nor was it claimed that the evidence that they
gave was not relevant. And the plain fact is that this evidence was considered to be sufficient to
establish the appellant's guilt and all challenges to the safety of the conviction have failed. Unlike
the case of Dahall v The State (1993) MR 220, where a conviction was quashed because the
appellant had only a vague recollection of the events surrounding the offences with which he was
charged, it was not suggested in this appeal that the appellant had suffered from any lapse of
memory. The Board is therefore satisfied that no unfairness of the type described in Boolell has
been established and that it would not be appropriate to quash the appellant's conviction.
21. Counsel referred the Board to a number of decisions where sentences of imprisonment were
reduced or substituted by a fine. The Board intends no discourtesy to counsel by its decision not
to review those authorities. The choice of an appropriate sentence is highly dependent on the
view that one takes of the particular circumstances of an individual case and the assistance to be
derived from comparison with other cases where the facts may be very different from those under
consideration is bound to be limited.

22. It is relevant, however, to refer to the observation of the Board in Boolell at para 39 to the effect
that it was not acceptable to put into operation a prison sentence some 15 years after it had been
imposed "unless the public interest affirmatively required a custodial sentence, even at this
stage". Although the period of time between sentence and the hearing of the appellant's appeal is
much less (6 years and 4 months), it is still appropriate to consider whether the public interest
requires that a custodial sentence be imposed.

23. All the indications are that the appellant was content to postpone the day of judgment and while
this cannot excuse the failure to adhere to the reasonable time guarantee (see Boolell at para 32
and Elaheebocus v The State [2009] UKPC 7 at para 20), it is relevant to the selection of the
proper sentence. Moreover, the offences of which the appellant was convicted were serious.
They involved the perpetration of a significant fraud on a government department. It is also
relevant that the appellant has three previous convictions for offences of dishonesty, albeit of a
much less serious character than those involved in this appeal. The Board is satisfied, in view of
these circumstances, that the public interest does indeed require the imposition of a custodial
sentence notwithstanding the delay that has occurred.

24. That delay was grossly excessive, however, and the appellant has had to confront the prospect of
imprisonment when he is much older than he would have been if the trial had been conducted
expeditiously. To reflect this and the serious failure of the State to fulfil the important
constitutional guarantee of trial within a reasonable time, the Board has concluded that a
sentence of nine months' imprisonment should be substituted for that imposed by the Supreme
Court.

25. The parties should make written submissions on the question of costs within 28 days.

ANNEX

Interlocutory Proceedings

29 November Applicant first charged (see evidence of witness 21)

1996

16 June 1999 Information filed

26 July 1999 Pleas taken & trial set for 17 January 2000

17 January Accused absent

2000

15 June 2000 Defence adjournment application – they said they did not receive the "brief" requested
14.03.00. Trial re-fixed for 19 September 2000.

19 September The Defence applied to stay the case arguing that 5 years from offence to trial was too long
2000 – Argument adjourned to 7 December 2000.

7 December The Defence withdrew their application to stay the case – they conceded both that the
2000 enquiry into this case was completed with a reasonable time and that the DPP gave advice
within a reasonable time. Trial re-fixed 12 July 2001 apparently to counsels' convenience.

12 July 2001 The Defence applied for an adjournment as his counsel had passed away and he needed to
retain the services of another. Trial re-fixed for 22 January 2002.

23 January Cyclone Dina appears to have interrupted the proceedings. Pre Trial Hearing listed for 18
2002 February 2002.

18 February
2002 &
5 March 2002 Applicant absent and had to be traced by Police. 13 May 2002 trial fixed for 10 October
& 2002.
8 April 2002

10 October Defence applicant for adjournment – counsel says he didn't get the brief until the day
2002 before (although it was available the previous week). He pleaded inability to obtain the
brief from previous counsel. Case adjourned to 21 January 2003.

21 January Prosecution application for adjournment – Inspector Najeer says that one of the enquiring
2003 officers has passed away and as a result original documents which were in his possession
have been mislaid – an adjournment is requested and no objection is made – adjourned to
30 June 2003.

30 June 2003 The Prosecution explained that the documents in relation to all but counts 1-2 & 5-6 had
been lost and that the deceased PS Ramchurn never handed them to the clerk of CID
South.
The Prosecutor only obtained this information on the day before the trial listing.
Adjourned for mention on 2 September 2003 for Prosecution to take a stand.

9 September Mention for the Prosecution to take a stand – the Prosecution said it would only proceed
2003 with counts 1-2 and 5-6.

16 September Mention to Fix – trial re-fixed for 20 February 2004.

2003

Trial

20 February 1st Day of Trial (Opening & Witnesses 21, 17, 16 and 11 called). Adjourned due to Court
2004 difficulties. Adjourned for Mention for Prosecution to take a stand on photocopied
documents on which they sought to rely.

24 February Trial re-fixed for 6 April 2004.

6 April 2004 The learned Magistrate was unwell. Case re-fixed for 27 July 2004.

27 July 2004 2nd Day of Trial (No Evidence Called). Prosecution application to adjourn – witnesses 1-7
were all absent and it appears that they had not been summonsed. No objection from the
Defence. Case re-fixed for 1 October 2004.

1 October 3rd Day of Trial (Witnesses 2&4 called) adjourned to 9 November 2004 lack of
2004 Prosecution Witnesses. No Defence objection.

9 November 4th Day of Trial (Witnesses 1,3,6 & 7 called) adjourned to 8 March 2005 due to absence of
2004 additional Prosecution witnesses (witnesses 5 & 10). Defence did not object but warned
that they would do on the next occasion. Adjourned to 8 March 2005.
9 March 2005 It was realised that the 8 March 2005 was a public holiday. Mention to fix arranged for 15
March 2005 and on that date the continuation was re-fixed for 4 May 2005.

1 May 2005 5th Day of Trial (Witness 5 called) but adjourned to 13 June 2005 due to the absence of
witness 10 no objection by the Defence.

13 June 2005 6th Day of Trial (No evidence Called) Witness 10 was absent again – Prosecution
application to adjourn no Defence objection. Adjourned to 13 July 2005.

13 July 2005 7th Day of Trial (No Evidence Called) Witness 10 was absent again despite having been
waned personally – Prosecution application to adjourn no Defence objection adjourned to
2 August 2005.

2 August 8th Day of Trial. (Witness 10, Prosecution Case Closed, No Evidence for the Defence,
2005 Closing Submissions) Judgment fixed for 15 September 2005.

13 October 9th Day of Trial (No Judgment). Judgment postponed as Defence late with their authorities
2005 – Judgment now 31 October 2005.

31 October 10th Day of Trial (No Judgment) Court requests submissions from the Prosecution on 3
2005 matters of law to be argued on 15 November 2005.

15 November 11th Day of Trial (No legal argument on the 3 Points of Law) Prosecution Application to
2005 adjourn – Legal Argument re-fixed for 30 November 2005.

30 November 12th Day of Trial (No legal argument on the 3 Points of Law) Defence application to
2005 adjourn as Defence counsel was abroad. Legal Argument re-fixed for 16 January 2006.

16 January 13th Day of Trial (No legal argument on the 3 Points of Law) learned Magistrate on leave
2006 submissions adjourned once more to 24 January 2006.

24 January 14th Day of Trial (No legal argument on the 3 Points of Law) Defendant absent no
2006 message had been received – Submissions adjourned to 8 February 2006. Defendant
attends in the afternoon.

8 February 15th Day of Trial (Legal Argument on the 3 Points of Law). Judgment fixed for 2 March
2006 2006.

2 March 2006 16th Day of Trial (Judgment, Amendment of Charges, Conviction and Appellant's
notification of intention to appeal).

Appeal
Proceedings

2 & 16 March Grounds of Appeal lodged.

2006

11 May 2006 Mention to Fix before the Registrar of the Supreme Court, fixed for 20 February 2007.

13 February Record had not yet been received – Appeal to be mentioned for re-fixing on 22 February
2007 2007.

22 February Mention to Fix before the Registrar of the Supreme Court, fixed for 14 January 2008.
2007

14 January Supreme Court Appeal Hearing Cor:- Sik Yuen CJ, Matadeen J
2008
12 February Judgment on Appeal filed.
2008

20 February Motion for leave to appeal to the Judicial Committee filed.

2008

10 March Supreme Court Mention Cor:-Sik Yuen CJ

2008 Prosecution indicates will oppose the motion case to be mentioned to fix.

25 March Case fixed for 26 June 2008.

2008

26 June 2008 Supreme Court Hearing Application for Leave to Appeal to the Judicial Committee Cor:
Sik Yuen CJ, Matadeen J. Adjourned because the record of the proceedings in the Court of
Appeal was not available.

18 July 2008 The matter was listed for mention to fix for continuation.

18 July 2008 The matter was re-fixed for 24 November 2008.

19 November The matter was to be re-fixed as the Chief Justice was overseas on 24 November 2008.
2008

13 January The matter was re-fixed for 8 May 2009.

2009

8 May 2009 Supreme Court Cor:-Sik Yuen CJ, Matadeen J Order granting Conditional Leave to
Appeal to the Judicial Committee (Grounds (a) – (h)).

Supreme Court Order granting Final Leave to Appeal to the Judicial Committee (Grounds
8(a)-(h)).

10 August
2009

29 June 2011 Notice of Appeal Filed.